In Re Complaint as to the Conduct of McKee

849 P.2d 509, 316 Or. 114, 1993 Ore. LEXIS 44
CourtOregon Supreme Court
DecidedApril 15, 1993
DocketOSB 89-61, 90-11, 90-135; SC S39378
StatusPublished
Cited by25 cases

This text of 849 P.2d 509 (In Re Complaint as to the Conduct of McKee) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Complaint as to the Conduct of McKee, 849 P.2d 509, 316 Or. 114, 1993 Ore. LEXIS 44 (Or. 1993).

Opinions

[116]*116PER CURIAM

This is an automatic and de novo review of a lawyer disciplinary proceeding. ORS 9.536;1 BR 10.1; BR 10.6. The Oregon State Bar (Bar) charged the accused in eight causes of complaint with violation of twelve disciplinary rules and one statute. The trial panel found the accused guilty of violating six different disciplinary rules and imposed a sanction of suspension from the practice of law for six months. On review, the accused challenges the trial panel’s findings of guilt and its recommended sanction. The Bar challenges the trial panel’s findings of not guilty on two disciplinary violations.2 The Bar has the burden of establishing the ethical misconduct by clear and convincing evidence. BR 5.2. “Clear and convincing” means highly probable. In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). We find the accused guilty of several violations and we suspend him from the practice of law for 18 months.

FINDINGS OF FACT

A. The Morris Complaint: We find that, in August 1987, Raymond Morris consulted with the accused about what Morris felt was harassment by his neighbor, Foster. The accused wrote Foster a letter, warning him that further harassment would result in legal action against him. Foster’s conduct continued. Morris returned to the accused, who for a fee of $2,000 promised to file an action against Foster. The accused considered that to be a high fee for his services, and he set it at that level to discourage Morris from going forward with litigation. Morris agreed to pay the quoted fee.

Before he filed the action, the accused met with Foster and a number of witnesses who told him their versions of the events; they convinced him that Morris might be at fault. At that time, the accused believed that Morris was potentially dangerous to Foster and he told Foster so. [117]*117Although the accused had formed the opinion that Morris was mentally unstable and that Morris’ version of the circumstances might not be entirely accurate, the accused did little investigation before filing the action. He only drove by Morris’ home and requested a medical evaluation of the effects of Foster’s conduct on Morris. The accused did not interview any of the seven witnesses whose names Morris had given him.

In October 1987, the accused filed a complaint for Morris, seeking compensatory and punitive damages from Foster for intentional infliction of severe emotional distress. After filing the complaint, the accused did no further investigation of the facts other than to speak occasionally with people who came into his office on other matters and with another neighbor, who disclaimed any knowledge of the facts of the dispute.

Because the accused did not wish to upset Morris, he made a conscious decision to keep him uninformed about the progress of the litigation. The accused did not tell Morris that opposing counsel had threatened to counterclaim for attorney fees, that the case was dismissed for lack of prosecution in April 1988 and later reinstated, that the defendant had filed motions to dismiss, that the accused had filed an amended complaint, or that opposing counsel had filed an answer that sought penalties and attorney fees and alleged a counterclaim for compensatory and punitive damages. The accused also failed to tell Morris that he had set a pre-trial conference, that a trial had been set for January 18, 1989, or that he was negotiating with opposing counsel for a restraining order. The accused did not return Morris’ telephone calls. When Morris visited his office from time to time, the accused would tell him that he had heard nothing about the litigation. The accused even told Morris and his wife to go forward with a trip to California between January 10 and February 5, 1989, without telling them that the trial had been set during that time.

At some point, the accused became convinced that Morris would not prevail at trial. About the time that the answer was filed in November 1988, the accused began discussing settlement with opposing counsel. Counsel discussed the possibility of obtaining mutual restraining orders. The [118]*118accused did not tell Morris that he was discussing settlement or that he and opposing counsel were considering mutual restraining orders. This failure to disclose settlement discussions was in keeping with the accused’s general policy not to tell any of his clients about settlement discussions. In early 1989, the lawyers agreed to resolve the case by way of restraining orders, and the accused agreed to and did draft a proposed order.

Eventually the trial was set for February 7,1989. At circuit court call on February 6, the accused reported that the case had been settled. At that time, however, the accused and opposing counsel had agreed only to the possibility that the case could be resolved by a mutual restraining order; they had not agreed to any specific terms of such an order. Moreover, on February 6, Morris had not authorized the accused to dismiss the case or to stipulate to a mutual restraining order. In fact, at the time that the case was called, even the accused had some question about whether he had authority to settle the case.

In January 1989, when the accused became aware of the February 7 trial date, he spoke to Morris, who was still vacationing in California. In a telephone conversation that the accused described as “short and to the point,” he told Morris that he would not prevail at trial. Morris, however, told the accused that he did not want to dismiss the case. The accused responded that the matter could be resolved by way of a restraining order, an idea of which, in the accused’s words, Morris “seemed to approve.” The accused then asked Morris to come to his office when he returned to Portland so that they could discuss the matter further. Morris ended the conversation by saying that he wanted to talk to his wife about the accused’s suggestion that the case be dismissed and that he would speak to the accused later. The next day, Morris called the office and told the accused’s secretary that he did not want the case dismissed.

On February 6, 1989, Morris met with the accused. The accused already had been to circuit court call that morning and had reported that the case was settled. He did not, however, tell this to Morris. At this meeting, the accused discussed obtaining a restraining order against Foster. Morris still wanted his day in court and did not understand [119]*119that agreeing to a restraining order would end the litigation. The accused then told Morris that he would draft a restraining order and take him to court when the judge signed it.

On behalf of Morris, the accused signed a stipulated judgment that settled both Morris’ claim against Foster and Foster’s counterclaim against Morris. The judgment was signed by the court on March 8, 1989. The form of the judgment was the result of negotiations that occurred between the accused and opposing counsel after February 6, 1989, and it restrained both parties from certain conduct. The accused never told Morris that he would be restrained from harassing Foster. Even though Morris was denying any wrongdoing with respect to Foster, the accused did not believe that it was important to discuss this with Morris. Morris did not receive a copy of the stipulated judgment until he and his wife later copied the court file.

B. The Newby-Crosby Complaint-.

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Bluebook (online)
849 P.2d 509, 316 Or. 114, 1993 Ore. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-complaint-as-to-the-conduct-of-mckee-or-1993.